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Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘D’
Before: SHRI RAJPAL YADAV & SHRI N.K. BILLAIYA
PER RAJPAL YADAV, JUDICIAL MEMBER:
Assessee is in appeal before the Tribunal against order of the ld.CIT(A)-5, Ahmedabad dated 12.3.2015 passed for the Asstt.Year 2006-07.
Assessee has taken two grounds of appeal, which included sub-grounds also. In brief solitary grievance of the assessee is that the ld.CIT(A) has erred in treating short term
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gain disclosed by the assessee at Rs.13,99,030/- as business income.
Brief facts of the case are that the assessee has filed its return of income on 27.12.2006 declaring total income at Rs.13,50,504/-. The assessee at the relevant time was engaged in the business of share trading and having short term capital gain and long term capital gain. On scrutiny of the accounts, it revealed to the AO that the assessee has disclosed long term capital of Rs.29,00,986/- and short term capital gain of Rs.13,99,030/-. The ld.AO after making an analysis of the accounts of the assessee treated the assessee as trader in the shares and assessed the alleged long term capital gain and short term capital gain as business income. On appeal, the ld.CIT(A) has accepted stand of the assessee with regard to long term capital. The ld.CIT(A) has treated the assessee as investor qua long term investment made by it. However, with regard to the short term capital gain shown by the assessee, the ld.CIT(A) was not convinced with the pleading of the assessee and treated it as a trader. Relevant finding recorded by the ld.CIT(A) reads as under:
“3.7. On going through the facts and submissions, it is noticed that the AO has treated the entire income derived by the appellant on shares as business income including the long term capital gain shown by the appellant. On going through the facts it is found that the appellant had the long term capital gain of Rs.29,00,586/- on the turnover of Rs.51,30,549/-. It is apparent that at least the
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partnership firm has not borrowed the money for the investment in shares which was even for more than a year and the entire partners capital have been utilized for the purpose of investments in the" long term shares. It is in general parlance that the trading stock is never kept for a period of more than 1 year, as he would always rotate its stock to earn the higher profits. In-the instant case, the shares and securities of the purchases cost at Rs.22,29,383/- has "been kept for more than a year and the same falls under the category of long term capital assets therefore it would be fair and reasonable to treat the income derived on these long term capital assets as a long term capital gain and accordingly the long term capital gain shown by. the appellant at Rs.29,00,986/- is held to be the long term capital gain and AO's stand treating the same as business income is not approved.
3.8. It is worth here to mention that the case laws relied upon by the A.O. for treating the long term capital gain as business income is misplaced and the same are not applicable over the facts of the case. Like in the case of CIT Vs. Associated Industrial Development Company Pvt. Ltd. (supra) the Hon'ble Supreme Court has hold the profits on sale of shares as business income for the reason that the appellant company was the managing agent of various companies and shares of those companies were sold and the sale proceeds thereof have been utilized for payment towards the overdraft account. Since the cited case the sale proceeds of the shares were integrally linked with the main business of the appellant. Even the shares sold were also of those companies for whom he was acting as managing agent. Thus, in those facts obviously the shares were held as a business asset being the managing agent therefore, the sales proceeds are nothing but the business receipts. In our case no such facts are on record and hence the cited case law decision is not applicable.
3.9. Further with regard to the judgment of Hon'ble Gujarat High Court in the case of H. Mohammed & Co. Vs. CIT has held that the treatment of the deficit in the stock of furniture due to destruction when let out' and spoilage could not be allowed as trading loss:' The facts- of the cited case are not applicable over the case of the appellant and hence could not be relied upon.
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3.10. With regard to the short term capital gain the appellant has 'derived the income of Rs. 13,99,030/- on the total sale proceeds of shares and securities at Rs.1,77,68,963/-. The volume of sale proceeds and also the purchases value are very high. Moreover the frequency of transactions are also very high. The appellant had even derived the profits by rotating the shares and bifurcation of its holding period for short term capital gain is as under:
Rs. Short Term Capital gain on sales after 352,382 holding shares for over 6 months but less 12 months
Short Term Capital gain on sales sold after 401,078 holding shares for over 3 months but less than 6 months
Short Term Capital Gain on sales sold after 458,920 holding shares for over 1 month but less than 3 months'
Short Term Capital gain on sales sold after 186,650 holding shares for less than 1 month 1,399,030 3.11. So it is apparent from the above that the appellant has made the maximum rotation of the shares/scrips even within a period of one month. The motive behind this rotation was nothing but to maximize its profits which can only be termed as business income and not the capital gain. So AO's finding and the reasons given by him are fully applied on the transactions pertaining to the short term capital gain and he has rightly hold the income derived therefrom as business income. Therefore, it is in agreement with the AO's finding to treat the short term capital gain as business income and his observations are fully endorsed. In the result the grounds of appellant are partly allowed.”
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With the assistance of the ld.representative, we have gone through the record. The issue, whether gain from sale of shares is to be assessed as a business income or short term capital gain/long term capital gain, is a highly debatable issue. It always puzzled the adjudicator even after availability of large numbers of authoritative pronouncements by the Hon’ble Supreme Court/Hon’ble High Court. The reason for the puzzle is, one has to gather the intention of an assessee while he entered into the transaction. The expression “intention” as defined in Meriam Webster Dictionary means, what one intends to accomplish or attain, it implies little more than what one has in mind to do or bring out. It suggests clear formulation or deliberation. Thus, it is always difficult to enter into the recess of the mind of an assessee to find out the operative forces exhibiting the intention for entering into the transaction. This would give rise a debate. Nevertheless, we have to look into the curious features of this case which will goad us on just conclusion.
Before we embark upon an inquiry on the facts of present case so as to find out, whether assessee is to be termed as involving in the trading of shares or to be treated as a simplicitor investors. We would like to refer certain broad principle culled out by ITAT Lucknow Bench in the case of Sarnath Infrastructure Pvt. Ltd. reported in 120 TTJ 216. These tests read as under:-
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“13. After considering above rulings we cull out following principles, which can be applied on the facts of a case to find out whether transaction(s) in question are in the nature of trade or are merely for investment purposes:
(1) What is the intention of the assessee at the time of purchase of the shares (or any other item). This can be found out from the treatment it gives to such purchase in its books of account. Whether it is treated stock-in-trade or investment. Whether shown in opening/closing stock or shown separately as investment or non- trading asset.
(2) Whether assessee has borrowed money to purchase and paid interest thereon? Normally, money is borrowed to purchase goods for the purpose of trade and not for investing in an asset for retaining.
(3) What is the frequency of such purchase and disposal in that particular item? If purchase and sale are frequent, or there are substantial transaction in that item, if would indicate trade. Habitual dealing in that particular item is indicative of intention of trade. Similarly, ratio between the purchases and sales and the holdings may show whether the assessee is trading or investing (high transactions and low holdings indicate trade whereas low transactions and high holdings indicate investment).
(4) Whether purchase and sale is for realizing profit or purchases are made for retention and appreciation its value? Former will indicate intention of trades and latter, an investment. In the case of shares whether intention was to enjoy dividend and not merely earn profit on sale and purchase of shares. A commercial motive is an essential ingredient of trade.
(5) How the value of the items has been taken in the balance sheet? If the items in question are valued at cost, it would indicate that they are investments or where they are valued at cost or market value or net realizable value (whichever is less), it will indicate that items in question are treated as stock-in-trade.
(6) How the company (assessee) is authorized in memorandum of association/articles of association? Whether for trade or for investment? If authorized only for trade, then whether there are
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separate resolutions of the board of directors to carry out investments in that commodity? And vice verse.
It is for the assessee to adduce evidence to show that his holding is for investment or for trading and what distinction he has kept in the records or otherwise, between two types of holdings. If the assessee is able to discharge the primary onus and could prima facie show that particular item is held as investment (or say, stock-in-trade) then onus would shift to Revenue to prove that apparent is not real.
The mere fact of credit of sale proceeds of shares ( or for that matter any other item in question) in a particular account or not so much frequency of sale and purchase will alone will not be sufficient to say that assessee was holding the shares (or the items in question) for investment. 9. One has to find out what are the legal requisites for dealing as a trader in the items in question and whether the assessee is complying with them. Whether it is the argument of the assessee that it is violating those legal requirements, if it is claimed that it is dealing as a trader in that item? Whether it had such an intention (to carry on illegal business in that item) since beginning or when purchases were made? It is permissible as per CBDT’s Circular No. 4 of 2007 of 15th 10. June, 2007 that an assessee can have both portfolios, one for trading and other for investment provided it is maintaining separate account for each type, there are distinctive features for both and there is no intermingling of holdings in the two portfolios. 11. Not one or two factors out of above alone will be sufficient to come to a definite conclusion but the cumulative effect of several factors has to be seen.”
The Hon’ble Gujarat High Court had also an occasion to consider this issue in the case of Commissioner of Income Tax vs. Riva Sharkar A Kothari reported in 283 ITR 338. Hon’ble court has made reference to the test laid by it in its earlier decision rendered in the case of Pari Mangaldas
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Girdhardas vs. CIT reported in 1977 CTR 647. These tests read as under:
“After analyzing various decisions of the apex court, this court has formulated certain tests to determine as to whether an assessee can be said to be carrying on business.
(a) The first test is whether the initial acquisition of the subject-matter of transaction was with the intention of dealing in the item, or with a view to finding an investment. If the transaction, since the inception, appears to be impressed with the character of a commercial transaction entered into with a view to earn profit, it would furnish a valuable guideline.
(b) The second test that is often applied is as to why and how and for what purpose the sale was effected subsequently.
(c) The third test, which is frequently applied, is as to how the assessee dealt with the subject-matter of transaction during the time the asset was the assessee. Has it been treated as stock-in-trade, or has it been shown in the books of account and balance sheet as an investment. This inquiry, though relevant, is not conclusive.
(d) The fourth test is as to how the assessee himself has returned the income from such activities and how the Department has dealt with the same in the course of preceding and succeeding assessments. This factor, though not conclusive, can afford good and cogent evidence to judge the nature of the transaction and would be a relevant circumstance
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to be considered in the absence of any satisfactory explanation.
(e) The fifth test, normally applied in case of partnership firms and companies, is whether the deed of partnership or the memorandum of association, as the case may be, authorizes such an activity.
(f) The last but not the least, rather the most important test, is as to the volume, frequency, continuity and regularity of transaction of purchase and sale of the goods concerned. In a case where there is repetition and continuity, coupled with the magnitude of the transaction, bearing reasonable proposition to the strength of holding then an inference can readily be drawn that the activity is in the nature of business.
In the light of the above, let us examine the facts of the present case. A perusal of the record would show that for earning short term capital gain of Rs.13,99,030/- the assessee has made purchases of shares having value of Rs.1,77,68,963/-. The volume of sale proceeds and also purchase value would depict that there were frequent transactions. These transactions were not intended with an objection of earning dividend income or maximizing the profit. They reflect that a large number transaction has been carried out by the assessee by retaining shares for less than a month. It is also pertinent to observe that the assessee
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failed to demonstrate that delivery of all shares was taken by it. Considering all these aspects and well reasoned order of the ld.CIT(A), we do not find any merit in this appeal. It is dismissed.
In the result, the appeal of the assessee is dismissed.
Order pronounced in the Court on 24th October, 2017.
Sd/- Sd/- (N.K. BILLAIYA) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 24/10/2017